Md. judge casts doubt on execution process

Ruling criticizes how state adopted lethal injection

An administrative law judge has issued a decision in the case of death row inmate Vernon Lee Evans Jr. that could force Maryland to redevelop its lethal injection procedures.

The decision stems from an inmate grievance Evans filed -- along with bringing state and federal lawsuits -- challenging how Maryland carries out executions and how the procedures were developed.

It is a tentative finding that may be accepted or disregard by Mary Ann Saar, secretary of the state's Department of Public Safety and Correctional Services.

Judge Denise Oakes Shaffer found that the execution protocols are state regulations, which means they must be developed in compliance with Maryland's Administrative Procedures Act. That requires oversight by the attorney general's office and a legislative committee, as well as a period of public review and comment.

Because the lethal injection protocols -- adopted before the May 1994 execution of John Frederick Thanos -- were not developed in that manner, "they are legally ineffective," Shaffer found.

"The procedures governing the execution of an inmate are not mere `routine management guidelines,'" the judge wrote. "Rather, they detail the minute steps and delicate procedures that a successful execution requires. ... The protocols, when viewed as a coherent whole, address ... the awesome task of carrying out a sentence of death."

Saar, who is named as a defendant in Evans' state and federal lethal injection lawsuits, has until Monday to decide what to do with Shaffer's proposed ruling.

Mark A. Vernarelli, a spokesman for the public safety department, said Saar "will base her decision on advice from her legal experts," noting that all the issues raised in Evans' inmate grievance are pending either in appeals heard in May before Maryland's highest court or in a federal civil lawsuit scheduled for trial in September.

Lawyers for the Division of Correction had argued that the lethal injection protocols apply to so few people that they do not need to be adopted under the same public scrutiny afforded more general regulations.

The administrative law judge deemed that argument "unpersuasive."

"The protocols apply to all inmates under a sentence of death. If there were hundreds under that sentence, the same protocols would apply," Shaffer wrote in her decision, issued this month.

She added, "Ensuring that the State complies with the Constitution is an interest in which all Maryland citizens have a stake, not just those under a sentence of death."

Although lawyers for Evans, 56, say they are not optimistic that Saar will side with them, others said any Cabinet-level secretary would have to give weighty consideration to this kind of a finding from an administrative judge.

"I don't think you can just assume that Saar will disagree," said Stephen H. Sachs, a former U.S. attorney and Maryland attorney general. "I think she'll have to give some weight to the reasoning behind the decision.

Sachs works for the same Washington law firm representing Evans in some of his appeals, but he has not handled that case.

Should Saar decide to reverse the proposed ruling, Evans' lawyers could file an appeal in circuit court.

Yesterday, Evans' attorneys sent the judge's decision to the Court of Appeals, which halted Evans' scheduled execution in February when the court agreed to hear four legal challenges, including a claim that the execution procedures were developed without legally required public input. Arguments were heard in May, and a decision from the court is pending.

A. Stephen Hut Jr., one of Evans' lawyers, said he hopes that the administrative law judge's decision will at least strengthen those arguments.

"The significance here is that our position has been -- and I think the administrative law judge agrees, to some extent -- that the public comment process is not an idle requirement," he said.

"Had the secretary put the [lethal injection] proposal out for comment, she or her predecessor would have heard about the serious problems and risks with the ... protocols that were adopted and might well have been led to something different."

As part of her order, the judge also proposed holding an evidentiary hearing on whether Evans' veins leave him at particular risk of a painful death because years of heroin abuse have so damaged them that they might not support the flow of chemicals used in executions.

Evans was sentenced to death in 1992 for the contract killings of David Scott Piechowicz and his wife's sister, Susan Kennedy. The two were gunned down April 28, 1983, with a submachine pistol at the Pikesville motel where they worked.

Piechowicz and his wife, Cheryl, had been scheduled to testify in a federal drug case against a Baltimore drug lord.

Jane Henderson, executive director of Maryland Citizens Against State Executions, a nonprofit organization that joined Evans' state lethal injection lawsuit, said the judge's decision should be viewed as a victory for open government.

"We oppose the death penalty, but our goal in the lawsuit is that open government is important, and if we're going to execute people, we shouldn't be doing it under this shroud of secrecy," she said, expressing concern over the way Maryland's lethal injection procedure was developed. "It's heartening to have someone say, as a point of law, that you're right, the Constitution does matter."